The “Walking Malpractice Suit”
The Attorney/Client Relationship for Patent Attorneys has Some Weird Nuance.
The fiduciary responsibility (and the fear of being sued for malpractice) is why attorneys explain everything in dreadful detail. It is not just that they bill by the hour. The attorneys are trying to lay all the options out on the table and make sure the client makes an “informed decision.”
As I began working in a law firm, the mantra of the senior partner was that independent inventors were a “walking malpractice suit.”
The senior partner was absolutely terrified of being sued by an inventor. An inventor would appear on the doorstep and want a patent. With virtual certainty, the inventor would run out of money and hope at some point. This failure causes the inventor to harbor resentments as their friends and family quit talking to them and creditors line up at the door. However, the patent attorney is still a friend (as long as the invoices are being paid), and now the inventor has regrets about spending countless thousands of dollars on the patent.
Since the patent attorney was the only person still around at the end of the entrepreneur’s journey, and with the terrible resentment of spending so much money, the inventor would sue the attorney to try to get at least some money back.
At least this was the fear of the senior partner.
Because of this fear, everything was explained in detail followed by written verification of the factors presented and the client’s decision. The senior partner also happened to be known for finding any chance to pad the bills with extra hours, and this was a great excuse.
This story about a “walking malpractice suit” may seem superficial and trope, but when you dig deeper into what the attorney is experiencing, it makes much more sense.
Lawyers are Terrified of Their Clients
I went to law school at age 39. I had a bit of life experience by then, and there were some interesting things that I learned. However, nothing impressed me as much as this:
Lawyers are terrified of their clients.
In law school and in practice, lawyers are terrified of their clients, but the average client does not know it.
Before law school, lawyers intimidated me. Everything thing they did was mysterious and magical, and it was awe inspiring to hear how things worked behind the curtain. In movies and TV, every attorney is portrayed as a genius, finding the key that unlocked the puzzle so that the good guy always won.
Before I started practicing patent law, my patent attorney was the only gateway I had into the system, and I was utterly dependent on every word that dripped from his mouth.
I had no idea about provisional vs. non-provisional, how the patent examination process worked, the magical powers of “protection” that I got with my patent, or anything else. It was a complete mystery to me. I needed a guide, and here he was, at $600/hr, slowly unveiling the path. I listened to every word, took copious notes, and paid every bill.
Once in law school, it is beaten into me that the client actually holds the reigns. The files are not the law firm’s, they are the client’s. The client can change attorneys at any point and the attorney can do nothing about it.
The client is not “owned” by the firm or the attorney. It is the other way around.
In the law industry, an attorney who leaves one firm to go to another firm or to go out on their own does not get to take “their clients” with them. The clients have the option to leave, the option to stay, or the option to go somewhere else. The client owns the files, not the law firm. Since the law firm represents the client, not an individual attorney, the attorney might leave but the files stay with the firm. Of course, until the client signs a written request to transfer the files.
Clients tend to form much stronger bonds to their attorneys than the attorneys to their clients. For a client, sharing their most valuable information – their invention – with their attorney forms a deep bond of trust. The inventor feels like they share a deep, dark secret with their attorney.
The attorney, on the other hand, is just handling yet another project like it is a commodity. When I was at my peak writing cases for Microsoft, I was filing over 50 patent applications a year. Each one was of life-changing importance to the individual inventor, but to me, it was just another document. I could not remember any of the inventors, even though I had sat through a meeting with all of them in some non-descript conference room. But I guarantee you that they remembered me.
For first-time entrepreneurs going through the patent process, the bond of the client to the attorney can be incredibly strong. I have reviewed people’s patent applications and pointed out, item by item, how awful that patent application is and how terribly damaged their project will become. Yet, the client cannot bear to fire the attorney. Somehow, the inventor thinks their patent attorney loves them as much as they love their patent attorney.